Facts of the
case

Sketch of the Mignonette by Tom Dudley

The English yachtMignonette was a 19.43 net tonnage, 52 feet (16 m) cruiser
built in 1867.[1]
In 1883, she was purchased as a leisure vessel by Australian lawyer John Henry
Want.[1]
The yacht could only reasonably be transported to Australia by
sailing her there but she was a small vessel and the prospect of a
15,000-mile (24,000-km) voyage hampered Want's initial attempts to
find a suitable crew. However, she finally set sail for Sydney from Southampton on 19 May 1884 with a crew of
four: Tom Dudley, the captain; Edwin Stephens; Edmund Brooks; and
Richard Parker, the cabin boy. Parker was 17 years old and an
inexperienced seaman.[2]

On 5 July, the yacht was running before a gale at 27°10′S9°50′W﻿ / ﻿27.167°S
9.833°W﻿ / -27.167; -9.833﻿ (R. v. Dudley and
Stephens distress), around
1,600 miles (2,600 km) northwest of the Cape of Good
Hope. Though the weather was by no means extreme and the vessel
was not in any difficulties, Dudley gave the order to heave to so that the crew
could enjoy a good night's sleep. As the maneuver was completed,
and Parker was sent below to prepare tea, a wave struck the yacht
and washed away the lee bulwarks. Dudley instantly realised that the
yacht was doomed and ordered the single 13-foot (4 m) lifeboat to be lowered. The
lifeboat was of flimsy construction, with boards only
0.25 inches (6 mm) thick and was holed in the haste to
get it away. The Mignonette sank within five minutes of
being struck and the crew abandoned ship for the lifeboat, only
managing to salvage vital navigational instruments along with two
tins of turnips and no fresh water.[3] There
have been various theories about the structural inadequacies of the yacht
that led to such a catastrophic failure in routine weather.[4]

Dudley managed to improvise a sea anchor to keep the lifeboat headed into
the waves and maintain her stability. Over the first night, the
crew had to fight off a shark with their oars. They were around
700 miles (1,100 km) from the nearest land, being either
St.
Helena or Tristan de Cunha.[4]
Dudley kept the first tin of turnips until 7 July when its five
pieces were shared among the men to last two days. On or around 9
July, Brooks spotted a turtle which Stephens dragged on board. The
crew were resolutely avoiding drinking seawater as it was then universally held to be
fatal and, though they devoured the turtle, they forwent drinking
its blood when it became contaminated with seawater. The turtle
yielded about three pounds (1.4 kg) of meat each, though the crew
ate even the bones, and, along with the second tin of turnips
lasted until 15 or 17 July. The crew consistently failed to catch
any rainwater and by 13 July, with no other source of fluid, they
began to drink their own
urine. It was probably on 20 July that Parker became ill
through drinking seawater. Stephens was also unwell, possibly
having experimented with seawater.[5]

Photograph of the lifeboat exhibited at Falmouth in 1884

Drawing lots in order to nominate a
sacrificial victim who would die to feed the others was possibly
first discussed on 16 or 17 July, and debate seems to have
intensified on 21 July but without resolution. On 23 or 24 July,
with Parker probably in a coma, Dudley told the others that it was
better that one of them die so that the others survive and that
they should draw lots. Brooks refused. That night, Dudley again
raised the matter with Stephens pointing out that Parker was
probably dying and that he and Stephens had wives and families.
They agreed to leave the matter until the morning. The following
day, with no prospect of rescue in sight, Dudley and Stephens
silently signalled to each other that Parker would be killed.
Killing Parker before his natural death would better preserve his
blood to drink. Brooks, who had not been party to the earlier
discussion claimed to have signalled neither assent nor protest.
Dudley always insisted that Brooks had assented. Dudley said a
prayer and, with Stephens standing by to hold the youth's legs if
he struggled, pushed his penknife into Parker's jugular vein, killing him.[5]

Richard Parker's tombstone

In some of the varying and confused later accounts of the
killing, Parker murmured, "What me?" as he was slain.[6] The
three fed on Parker's body, with Dudley and Brooks consuming the
most and Stephens very little. The crew even finally managed to
catch some rainwater. Dudley later described the scene, "I can
assure you I shall never forget the sight of my two unfortunate
companions over that ghastly meal we all was like mad wolfs who
should get the most and for men fathers of children to commit such
a deed we could not have our right reason."[7] The
crew sighted a sail on 29 July.[8]

Rescue
and arraignment

Dudley, Stephens and Brooks were picked up by the German sailing barqueMoctezuma which
returned the men to Falmouth, Cornwall on Saturday 6
September en route to its destination in Hamburg.[9] On
arrival in Falmouth, the survivors attended the customs house and
Dudley and Stephens entered statutory statements under the Merchant
Shipping Acts, required in the event of a shipping loss. All three
were candid, Dudley and Stephens believing themselves to be
protected by a Custom of the Sea. However, policeman
Serjeant Laverty was in the vicinity of the depositions and later
questioned Dudley about the means by which he had killed Parker,
taking custody of the knife and promising to return it. The
depositions were telegraphed to the Board of Trade and to
the registrar general of shipping in Bassinghall Street in London.
While the survivors were making arrangements to rejoin their
families, Bassinghall Street advised that the men should be
detained in Falmouth. The Board of Trade gave conflicting advice to
take no action but informed the Home Office. The Home Office was closed for
the weekend. Meanwhile, Laverty was seeking warrants for the
men's arrest for murder on the high seas, warrants he obtained
later that day from mayor of Falmouth Henry Liddicoat.[10]

The three men were held in the borough police station until they
could appear before the magistrates on the morning of Monday, 8
September. Dudley appears to have been confident that the
magistrates would dismiss the charges and Liddicoat visited the men
to apologise for their inconvenience. However, all magistrates had
recently been instructed to seek advice of the Treasury Solicitor in all murder cases and
the clerk probably prompted Laverty to ask for a remand
in custody and adjournment while advice was sought. Local
solicitor Harry Tilly
appeared for the men and requested bail but after the magistrates, including
Liddicoat, had consulted, they were returned to the police cells
until 11 September.[11]

By the time of their appearance in front of the magistrates on
11 September, public opinion in Falmouth had swung firmly behind
the defendants, especially after Parker's brother Daniel, also a
seaman, appeared in court and shook hands with the three. The case
was again adjourned until 18 September, though this time Tilly
succeeded in obtaining bail, the Home Office having hinted to the
court that this would be appropriate.[13] The
three men returned to their homes while the case began to appear
across the British and worldwide press. It soon became clear that
public opinion was with the three survivors.[14]
However Harcourt was revolted by the public's sentiment and intent
on a conviction.[15]

William Otto Adolph Julius Danckwerts, a
barrister of only six years' call but with
considerable experience in wreck inquiries, was briefed for the
prosecution but soon realised that public sentiment and the lack of
evidence posed
formidable difficulties. The only witnesses were the three
defendants themselves and their right to silence would impede any
formal proceedings. Further a confession was only admissible against
the person making it, not his co-defendants, and the contents of
the depositions was probably inadequate to convict. When the case
was heard by the magistrates on 18 September, Danckwerts told the
court that he intended to offer no evidence against Brooks and
requested that he be discharged so that he could be called as a witness for the prosecution.
There is no evidence that Brooks had been canvassed about this and
the magistrates agreed. Danckwerts opened the prosecution case and
called as witnesses those who had heard the survivors' stories and
Brooks. The magistrates committed Dudley and Stephens for trial at the winter
Cornwall and Devonassizes in
Exeter, but extended their
bail.[16]

Saint
Christopher case

In the early seventeenth century, seven Englishmen embarked on
an overnight voyage from Saint Christopher, but were blown
out to sea and lost for 17 days. During this time, starving, they
cast lots to see who would sacrifice their own life for the others.
The lot fell to the man who had suggested the scheme and he
consented to his subsequent killing. His body sustained the rest
until they made their way to Saint Martin. They were returned to Saint
Christopher where they were put on trial for homicide. The judge pardoned them, their crime being "washed away"
by "inevitable necessity". However, though this case was cited in
defence of Dudley and Stephens, it was reported only anecdotally
some years later in a medical work and not in the law reports.[17]

U.S. v.
Holmes

In 1841, the U.S. ship William
Brown sank after hitting an iceberg. Crewmen, including Alexander William
Holmes, believed that their overloaded lifeboat was in danger of
itself sinking and put 14 or 16 passengers overboard to their
inevitable deaths in the frigid water. On his return to Philadelphia, Holmes
was arrested and charged with murder. However, the grand jury rejected the indictment and
substituted manslaughter.[18] The
judge in the United
States Circuit Court for the Eastern District of Pennsylvania
instructed the jury that necessity might be a complete defence but
that "before the protection of the law of necessity can be invoked,
a case of necessity must exist, the slayer must be faultless, he
must owe no duty to the victim." The jury convicted Holmes and the
principle of necessity was not tested by any higher court. This
case was also cited in defense of Dudley and Stephens.[19]

James
Archer

The Euxine

On 9 August 1874, the collier Euxine was lost and James
Archer took charge of one of the lifeboats with seven other
survivors. Archer and four survivors were picked up on 31 August
and Archer was candid that he and August Muller had killed and
butchered Francis Shufus, selected by drawing lots. They were
ultimately landed at Batavia Road where the acting British consul, William J. Fraser took
their surprisingly honest depositions. The men were then shipped
to Singapore along with
Fraser's depositions and put into the hands of shipping master
Henry Ellis, a character fictionalised in Joseph Conrad's novella The Shadow
Line. Ellis consulted Attorney
General for SingaporeThomas Braddell but then wrote to the
Board of Trade
in London that no further
action was necessary and the men were free to find another ship to
serve. However, Singapore Governor Sir Andrew Clarke had ordered
the men arrested and when he informed the Colonial
Office, they insisted that he hold a judicial enquiry.
Prosecution was started in Singapore but ultimately dropped after
extended procedural wrangles as to whether Singapore or England was
the most appropriate jurisdiction.[20]

1878/ 1879, declined to codify the defence as it was "better to
leave such questions to be dealt with when, if ever, they arise in
practice by applying the principles of law to the circumstance of
the particular case."[22]

In 1874, James Fitzjames Stephen
introduced a Homicide Law Amendment Bill that included a defence of
necessity but it was lost and Stephen himself had changed his mind
by 1884.[21]

Trial

The trial of Dudley and Stephens opened in Exeter on 3 November
before Judge Baron Huddleston. Arthur Charles QC led for
the prosecution and Arthur J. H. Collins QC for the defence, paid
for out of a defence fund that had been established by public
subscription. Huddleston was well aware of the passion of the local
jury and probably aware of the case of the Euxine and the
failed prosecution of James Archer, and was determined that the
case not collapse and that the issue of necessity be settled. Sir
William Robert Grove had initially
been listed to take the assizes that session and there has been
speculation that Huddleston was substituted to ensure a "safe pair
of hands". Huddleston had a reputation as a judge able to direct a
jury.[23]

The jury was empanelled and sworn, being
composed of almost the same jurors as had sat with Huddleston the
previous day in a murder case that had resulted in the death penalty. Dudley and Stephens pleaded
not guilty. Charles opened for the prosecution, outlining the legal
arguments and dismissing the defence of necessity. He also
dismissed the insanity defence; it was clear from the
depositions and Dudley's prayer that they were aware of the quality
of their actions. However, Charles did not suppress the dreadful
conditions on the boat and suggested an ultimate appeal to
clemency.[24]

A discussion now took place between Huddleston and Collins which
amounted to the fact that Huddleston had made up his mind on the
law and was not interested in hearing any submissions from the
defence. In fact, Huddleston had already planned how he would
ensure a guilty verdict and settle the law on necessity once and
for all. He would invite, in robust terms, the jury to return a special verdict, stating only the facts of
the case as they found them but giving no opinion on guilt or
otherwise. It would then be for the judge to decide whether the
facts found amounted to guilt. Though special verdicts had once
been common, none had been returned since 1785 and the jury in any
case retained the right to return a general verdict. Huddleston was
further determined that the legal question would be settled by a
bench of several judges in order to lend it authority. Hence, he
planned to adjourn the trial after the special verdict and
reconvene with fellow judges to pronounce guilt. Collins would have
his opportunity to argue the law in front of the expanded
bench.[25]

The prosecution produced the various accounts and depositions
written by the defendants and the evidence that the
Mignonette was registered in Britain, necessary to
establish the court's jurisdiction under s.267 of the Merchant Shipping Act 1854.
Charles then called evidence from the various people who had spoken
to the defendants on their arrival in Falmouth before calling
Brooks. Brooks provided a compelling account of Dudley and
Stephens' actions and his own non-involvement. In cross-examination, Collins did not
challenge his account, but made him confirm the appalling
conditions on the boat, Brooks' own cannibalism, their inevitable
death without recourse to Parker's body and the belief that Parker
would have died first.[25]

Though Collins addressed the jury on necessity in his closing
speech, Huddleston presented them with a stark alternative: accept
his direction to find the men guilty of murder or return a special
verdict. Without waiting for the jury's decision, Huddleston
produced a special verdict that he had written the night before and
invited the jury to indicate their assent to each paragraph as he
read it out. Silence was sufficient. Though the jury finally tried
to add some facts to the verdict, Huddleston insisted, perhaps not
entirely truthfully, that their observations were already
incorporated. The final words of the verdict were, "But whether
upon the whole matter, the prisoners were and are guilty of murder
the jury are ignorant and refer to the Court." Huddleston then
renewed the defendants' bail and adjourned the assizes to his rooms
in the Royal Courts of Justice in
London for 25 November.[26]

Huddleston's blunders

Baron Huddleston

At some point after the trial, but before the special verdict
was copied for the London review, Huddleston realised that he had
made a potentially fatal error. In his original draft, he had
described the Mignonette as an "English Merchant vessel"
but had altered this to read "yacht". Further, he had described the
lifeboat as "an open boat" and not asserted its provenance on the
Mignonette. He now realised that he had omitted the
critical finding necessary to give the court jurisdiction over
Dudley and Stephens. Huddleston's solution was simply to alter his
record of the verdict.[27]

On 25 November, the Cornwall and Devon winter assizes reconvened
at No. 2 Court, the Royal Courts of Justice in London.
Attorney-General Sir Henry James appeared for the prosecution and
immediately pointed out a problem. The Divisional Court of the Queen's Bench had
an established authority to decide a matter of law with a panel of
judges after referral from an inferior court. However, statute only permitted this
following a conviction and there had been no conviction in Exeter.
James suggested that an alternative was to hear the case as the
Cornwall and Devon assizes, albeit at an unusual venue, but to add
further judges to the bench as all High
Court judges had authority to hear assize cases. Huddleston
expressed his scepticism that judges could be added to a trial once
it had begun. Moreover, he had been looking for affirmation from a
superior court. By this time Collins had become suspicious of
Huddleston's tampering with the record of the trial and requested
the shorthand notes of
the hearing. With the proceedings now a shambles, the case was
listed for 4 December and the defendants, though on what authority
is unclear, were ordered to attend in London.[28]

At a further hearing on 2 December, James withdrew his
suggestion of an augmented assize court and gave the opinion that
the court should sit as the Queen's Bench Divisional Court.
However, this should only have allowed two or three judges, not the
five who eventually sat. Collins seems not to have taken the
opportunity to challenge the jurisdiction or constitution of the
court, possibly because of some agreement with the prosecution and
promise of clemency.[29]

Judgment

Lord Coleridge

The Queen's Bench Division sat on 4 December under Lord Chief JusticeLord Coleridge. James appeared for the
prosecution, leading Charles and Danckwerts. At the beginning of
the hearing, the report of the Exeter trial was read out, at some
length, in its entirety. This allowed Collins to submit that the
special verdict had been altered. As much was ultimately admitted
and it was eventually agreed that it was best that the special
verdict be restored to the version agreed by the jury. However,
Collins' attempt to challenge the jurisdiction of the court was
rejected by the judges. Collins then submitted that the court was
not competent to return a verdict as the Exeter jury had not given
a conditional verdict asserting that the jury would find in
accordance with the judge's ruling. Though this troubled the
judges, especially Grove, the point was eventually dismissed as one
of form only.[30]

James submitted that there was no common law authority to
support the proposition that necessity was a defence to murder. The
Saint Christopher case was rejected as a precedent because it had
not been formally recorded in the law reports. Before Collins
started his submissions, Lord Coleridge instructed him to confine
his remarks to murder, thereby dismissing the plausible alternative
that necessity was a partial defence leading to a conviction for
manslaughter by analogy with the partial defence of provocation. Collins responded by
citing United States
v. Holmes (1842) and discussing the various theoretical
and ethical arguments in favour of the necessity defence. At the
conclusion of Collins' submissions, the judges withdrew. They
returned after a few moments and Lord Coleridge declared, "We are
all of the opinion that the conviction should be affirmed but we
will put our reasons in writing and give them on Saturday next."
After some technical legal discussion, Lord Coleridge committed
Dudley and Stephens to Holloway Prison,
then a men's institution until Tuesday, 9 December, when the court
would deliver its reasons and its sentence.[31]

The panel of judges found that there was no common law defence
of necessity to a charge of murder, either on the basis of legal
precedent or the basis of ethics and morality.[32]

To preserve one's life is generally speaking a duty, but it may
be the plainest and the highest duty to sacrifice it. War is full of instances in which it is
a man's duty not to live, but to die. The duty, in case of
shipwreck, of a captain to his crew, of the crew to the passengers,
of soldiers to women and children, as in the noble case of the
Birkenhead; these duties
impose on men the moral necessity, not of the preservation, but of
the sacrifice of their lives for others, from which in no country,
least of all, it is to be hoped, in England, will men ever shrink,
as indeed, they have not shrunk.[32]

It would be a very easy and cheap display of commonplace
learning to quote from Greek
and Latin authors, from Horace, from Juvenal, from Cicero, from Euripides, passage after passage, in which
the duty of dying for others has been laid down in glowing and
emphatic language as resulting from the principles of heathen
ethics; it is enough in a Christian country to remind ourselves of
the Great Example [Jesus Christ] whom we profess to
follow.[32]

Further, the judges questioned who was qualified to make the
decision of who should live and who die were the principle to be
allowed. They further observed that such a principle might be the
"legal cloak for unbridled passion and atrocious crime". However,
they were sensible of the men's awful predicament.[32]

It must not be supposed that in refusing to admit temptation to
be an excuse for crime it is forgotten how terrible the temptation
was; how awful the suffering; how hard in such trials to keep the
judgment straight and the conduct pure. We are often compelled to
set up standards we cannot reach ourselves, and to lay down rules
which we could not ourselves satisfy. But a man has no right to
declare temptation to be an excuse, though he might himself have
yielded to it, nor allow compassion for the criminal to change or
weaken in any manner the legal definition of the crime.[32]

Dudley and Stephens were sentenced to the statutory death
penalty with a recommendation for mercy.[32]

Aftermath

Sir William Harcourt

Collins still had the option of moving a writ of error to raise the very arguable
issues of jurisdiction and constitution of the court but he knew
that the verdict in such an important case had been pre-decided and
Dudley and Stephens still anticipated an immediate release.
However, by 11 December, there was still no announcement and it
seemed that, their having been convicted, public opinion was moving
against the men. Any exercise of the royal prerogative of mercy
would be exercised by Queen Victoria on the advice of the Home
Secretary. Though Harcourt was personally in favour of abolition of
the death penalty, he was conscientious in his official duties. He
took the judgment of the court seriously, that the men were guilty
of murder, and feared that commuting the sentence to anything other
than life
imprisonment would mock the law. However, Attorney-General Sir
Henry James felt that a life sentence would not resist the attack
of public opinion. He noted that the court had withheld a finding
of manslaughter from the jury but that had it been available that
would have been the jury's verdict and "no judge would have
inflicted more than three months' imprisonment".
Solicitor-General Sir Farrer Herschell concurred. On 12 December,
Harcourt decided on six months' imprisonment. Dudley and Stephens
were advised the next day but were somewhat disappointed at so long
in custody. Dudley never accepted the justice of his
conviction.[33]

Cultural
impact

The case is familiar among lawyers in the common law
jurisdictions—that is, England and many, though not all, former
British dependencies—and is universally studied by law students in
such jurisdictions. However, Simpson observed that, though many
murderers have become household names in Britain, the case is
surprisingly unfamiliar to the public at large.[34]

It became better known in 1974 when Arthur Koestler ran a
competition in The Sunday Times, in which
readers were invited to send in the most striking coincidence they
knew of. The winning entry pointed out that in Edgar Allan
Poe's novel The
Narrative of Arthur Gordon Pym of Nantucket, published
decades before The Mignonette sank, four men are cast adrift on
their capsized ship and draw lots to decide which of them should be
sacrificed as food for the other three. The unfortunate loser was
the sailor who himself had proposed the idea: Richard Parker.

Simpson, A. W.
B. (1984), Cannibalism and the Common Law: The Story of the
Tragic Last Voyage of the Mignonette and the Strange Legal
Proceedings to Which It Gave Rise, Chicago: University of
Chicago Press, ISBN
9780226759425